Definitions

Harassment and discrimination are complex issues, and in order to address and prevent all forms of harassment and discrimination within and around the Barnard College community, a number of definitions and policies exist at the university level as well as Manhattan (jurisdiction of the college), state, and federal levels of governments. This page is intended to consolidate an array of definitions that exist. Those with questions should seek further information based on the provided resources below. Additionally, Molree Williams-Lendor, Title IX Coordinator, is available to answer questions and concerns.

Discrimination occurs when one experiences negative or adverse conduct based on characteristics protected in this policy and applicable local, state, and federal laws, where such conduct has the effect of denying or limiting one's ability to benefit from and fully participate in educational programs or activities or employment opportunities.

Discriminatory Harassment is harassment on the basis of a protected classification, including harassment of an individual in connection with a stereotyped group characteristic, or because of that person's identification with a particular group. Such harassment is any conduct, verbal, nonverbal, or physical, on or off campus, that has the effect, because of its severity and/or persistence, of unreasonably interfering with an individual or group's educational or work performance or that creates an intimidating or hostile educational, work, or living environment.

Discriminatory harassment includes but is not limited to: epithets or slurs; negative stereotyping; denigrating jokes; and display or circulation in the working, learning, or living environment (including electronic transmission) of written or graphic material.

Retaliation is any action to penalize, intimidate, harass, or take adverse action against a person who makes a report of discrimination or harassment, participates in an inquiry or investigation, or otherwise asserts rights protected by non-discrimination laws.

Definitions for Policy Against Discrimination and Harassment - Gender-based discrimination or harrassment

Barnard Policy Definitions

Consent involves explicit communication. Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression. See below for further discussion of consent.

Dating Violence means behavior that includes any act or threat of act of physical violence, coercion, threats, isolation, stalking, by a person who has been in a romantic or intimate relationship with the complainant (victim). Dating violence may also include forms of economic or emotional abuse, including behaviors that manipulate, isolate, frighten, threaten, injure, or coerce someone. Whether there was such a relationship will be gauged by its length, type, and frequency of interaction. Dating violence can be a single act or a pattern of behavior in relationships. The parties may be in short or long-term relationships (current or former) intended to provide some emotional/romantic and/or physical intimacy.

Domestic Violence includes assorted violent misdemeanor and felony offenses committed by the complainant’s current or former spouse, current or former cohabitant as a spouse or intimate partner, person similarly situated under domestic or family violence law, or anyone else protected under applicable domestic or family violence law. Domestic violence can be a single act or a pattern of behavior in relationships. The parties may be in short or long-term relationships (current or former) intended to provide some emotional/romantic and/or physical intimacy.

Gender-Based Harassment includes acts of verbal, non-verbal, or physical aggression, intimidation, or hostility based on gender, gender identity, or gender-stereotyping. Gender-based harassment can occur when an individual or group is harassed either for exhibiting stereotypical characteristics of a particular sex or failing to conform to stereotypical notions of masculinity or femininity.

Gender-Based Misconduct comprises a broad range of behaviors focused on sex and/or gender discrimination that may or may not be sexual in nature. Sexual harassment, sexual assault, sexual exploitation, gender-based harassment, domestic violence, dating violence and stalking can be forms of gender-based misconduct under this policy. Misconduct can occur between strangers or acquaintances, including people involved in an intimate or sexual relationship (current or former). Gender-based misconduct can be committed by men or by women, and it can occur between people of the same or different sex or gender identity.

Sexual Assault is any non-consensual intentional physical contact of a sexual nature, such as unwelcome physical contact with a person’s genitals, buttocks, or breasts, or any form of sexual intercourse without consent. Rape[1] is a form of sexual assault. Sexual intercourse includes oral-genital contact, anal intercourse, or vaginal intercourse; anal, oral, or vaginal penetration with an object, or forcing someone to engage in anal, oral, or vaginal penetration. Sexual Contact includes: (a) intentional touching of the breasts, buttocks, groin, inner thighs, or genitalia, whether clothed or unclothed, or intentionally touching another with any of these body parts; or (b) making another touch you or themselves with or on any of these body parts.

Sexual assault occurs when the act (non-consensual sexual contact or non-consensual sexual intercourse) is committed by: a) physical force, violence, threat, or coercion; b) ignoring the objections or without the consent of another person; c) causing another's incapacitation through intoxication or impairment through the use of alcohol or other drugs; and/or d) taking advantage of another person's incapacitation by alcohol or drug use, disability, unconsciousness or helplessness which renders them unable to give consent. In accordance with New York State law, a person under the age of 17 lacks the capacity to give consent. (see also the definition of consent).

Sexual Exploitation is non-consensual sexual abuse or exploitation of another; such behavior that does not otherwise constitute another specifically defined behavior. Examples of sexual exploitation include, but are not limited to, non-consensual use of electronics to capture, reproduce or share images of a sexual nature without consent of parties involved, public indecency or exposing genitals to others without consent, or engaging in voyeurism (observing another when privacy would be reasonably expected, such as watching private sexual activity or viewing another person’s nudity / intimate parts) without consent.

Submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment or admission to or participation in an academic program or College-sponsored activity; or

Submission to or rejection of such conduct is used as the basis for decisions affecting an individual's employment status or academic standing; or

Such conduct has the purpose or effect of unreasonably interfering with an individual's performance on the job or in the classroom; or

Such conduct has the purpose or effect of creating an intimidating or hostile work or study environment for an individual or group of individuals.

Sexual harassment can occur regardless of the relationship, position or respective sex of the parties; same sex harassment violates this policy. Harassment because of one's actual or perceived sexual orientation also constitutes a violation of this policy.

Stalking means a course of conduct directed at a specific person that would cause a reasonable person to feel fear for her, his or others’ safety or to suffer substantial emotional distress. Stalking involves repeated and continued behaviors that may include: pursuing or following; non-consensual (unwanted) communication or contact - including face-to-face, telephone calls, voice messages, electronic messages, text messages, unwanted gifts or tokens.; trespassing; and surveillance or other types of observation.

[1] New York Criminal definitions for this and other crimes that may also constitute violation of this policy can be found in the Annual Security Report, found on the Public Safety webpage.

What does it mean to have consent? *

Consent involves explicit communication. Affirmative consent is a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in the sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent. The definition of consent does not vary based upon a participant's sex, sexual orientation, gender identity, or gender expression.

A sexual encounter is considered consensual when individuals each willingly and knowingly engage in sexual activity. Consent cannot be obtained through the use of coercion. Coercion is the use of pressure, manipulation, substances force and disregarding objections of another party to engage in sexual activity. Consent must be clearly and unambiguously communicated.

Consent to any one sexual act or prior sexual activity does not necessarily constitute consent to any other sexual act. Consent may be given initially but withdrawn at any time. When consent is withdrawn or can no longer be given, sexual activity must stop.

One who is incapacitated (whether by alcohol or drug use, disability, unconsciousness, or is otherwise helpless) cannot consent to sexual activity. In this procedure, determining whether an individual was incapacitated may depend on the perspective of an objective and reasonable interpretation of events to consider whether a sober individual in the Respondent’s position could know or should have known that the Complainant was incapacitated.

The person initiating each specific sexual act is responsible for obtaining affirmative consent, regardless of whether or not the initiator is under the influence of alcohol and/or other drugs.

Alcohol and Drug Amnesty.The health and safety of every student at Barnard is of utmost importance. Barnard recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence, including, but not limited to domestic violence, dating violence, stalking, or sexual assault occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. Barnard strongly encourages students to report domestic violence, dating violence, stalking or sexual assault to College officials. A bystander acting in good faith or a reporting individual acting in good faith that discloses any incident of domestic violence, dating violence, stalking or sexual assault to College officials or law enforcement will not be subject to the College’s Code of Conduct action for violations of alcohol and/or drug use policies occurring at or near the time of the commission of the domestic violence, dating violence, stalking, or sexual assault. The College alcohol policy can be found on the Barnard website at https://barnard.edu/policy/aod.

Criminal Definitions

Below are criminal definitions used for Clery data collection and reporting per the specifications of the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act and amended by the Violence Against Women Reauthorization Act of 2013. The definitions provided here explain the Clery designated definitions as well as represent criminal definitions within the jurisdiction of New York where applicable. Each year, Barnard College's Annual Security and Fire Safety Report provides these definitions; click here to access the report. This page is for informational purposes, look to the relevant source for the most current, specific legal and criminal information.

Ultimately, in New York the District Attorney will determine whether an act meets the criminal standard.

Consent. Under New York State Penal Law, Article 130.05, lack of consent results from forcible compulsion and incapacity to consent due to mental disability, mental incapacity, physical helplessness or being less than 17 years old. Rape 3 and Criminal Sexual Act 3 have recently been modified with a "no means no" clause. In cases of intercourse only, if the victim expressed that he or she did not consent to the sex act in such a way that a reasonable person would have understood those words or acts as expressing lack of consent, this would be prosecutable as Rape in the third degree or Criminal Sexual Act in the third degree.

Sexual Assault means an offense that meets the definition of rape, fondling, incest, or statutory rape as used in the FBI’s Uniform Crime Reporting system. A sex offense is any act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent. The term 'sex offenses' is utilized in New York State Penal Law.

Rape is defined as the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.

Fondling is defined as the touching of the private parts of another person for the purposes of sexual gratification, without the consent of the victim, including instances where the victim is incapable of giving consent because of his /her age or because of his/her temporary or permanent mental incapacity.

Incest is defined as non-forcible sexual intercourse between persons who are related to each other within the degrees wherein marriage is prohibited by law.

Statutory Rape is defined as non-forcible sexual intercourse with a person who is under the statutory age of consent.

Under New York State Penal Law, rape is always a felony. A person is guilty of rape when a person engages in sexual intercourse with another person without that person’s consent. Rape may be committed in seven (7) ways:

Forcible compulsion

Mentally Defective

Mentally Incapacitated

Person 21 years of age or older, engages in sexual intercourse with another person who is less than seventeen (17) years of age (16, 15, or 14).

Person, age 18 years of age or older, engages in sexual intercourse with another person who is less than 14 years old (13, 12, or 11).

The victim is physically helpless.

A male engages in intercourse with a female who is less than 11 years old (10 or less.)

Sodomy is always a felony. A person is guilty of sodomy when that person engages in deviant sexual intercourse with another person, without that person’s consent. Sodomy may be committed in seven (7) ways as described above, under rape.

Sexual misconduct is always a misdemeanor. A person is guilty of sexual misconduct when:

He or she engages in sexual intercourse with another person without such person’s consent; or

He or she engages in deviant sexual intercourse with another person without such person’s consent; or

He or she engages in sexual conduct with an animal or a dead human body.

Domestic Violence. The term “domestic violence” means 1) Felony or misdemeanor crimes of violence committed (i) by a current or former spouse or intimate partner of the victim; by a person with whom the victim shares a child in common; (iii) by a person who is cohabitating with or has cohabitated with the victim as a spouse or intimate partner; (iv) by a person similarly situated to a spouse of the victim or family violence laws of the jurisdiction in which the crime of violence occurred; or (v) by any other person against an adult or youth victim who is protected from that person’s acts under the domestic or family violence laws of the jurisdiction in which the crime of violence occurred. 2) For the purposes of complying with the Clery reporting requirements, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.

New York’s Domestic Violence Law requires that when the police are called, they must investigate even if the victim did not request their services. There is a mandatory arrest law in New York State when the police have probable cause to believe that a CRIME has been committed. The police MUST arrest the offender if the victim and the offender are members of the same family/household or intimate partners and:

a felony was committed, or

an Order of Protection was violated, or

a family offense misdemeanor was committed (unless the victim requests otherwise).

enables victims to bring their cases to family and criminal courts concurrently, instead of forcing victims to choose between them.

requires violators face felony charges when harassing or threatening a victim during an order of protection violation.

maintains a statewide Orders of Protection Registry to aid police and courts when taking action.

allows courts to give orders of protection, even when the offender does not reside in New York state, thus giving victims who live or work in New York protection.

requires police to determine the primary physical aggressor, so that victims of domestic violence are not inappropriately arrested along with their abusers when more than one person alleges violence.

ensures safety for victims of domestic violence by promoting more rigorous interstate enforcement of orders of protection.

Dating Violence. The term “dating violence” means violence committed by a person 1) who is or has been in a social relationship of a romantic or intimate nature with the victim and 2) the existence of such a relationship shall be based on the reporting party’s statement and with consideration of the length of the relationship, the type pf relationship, and the frequency of interaction between the persons involved in the relationship. 3) For the purposes of this definition (i) dating violence includes, but is not limited to, sexual or physical abuse

or the threat of such abuse; (ii) dating violence does not include acts covered under the definition of domestic violence. For the purposes of complying with the Clery reporting requirements of this section, any incident meeting this definition is considered a crime for the purposes of Clery Reporting.

Under New York State Penal Law, persons who commit criminal acts associated with dating violence are subject to arrest. Such crimes include, but are not limited to “Offenses against the person involving physical injury, sexual conduct, restraint and intimidation, as listed in Article 120, title H.

Stalking means engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for the person’s safety or the safety of others; or suffer substantial emotional distress. For the purposes of this definition (i) course of conduct means two or more acts, including, but not limited to, acts which the stalker directly, indirectly, or through third parties, by any action, method, Device, or means follows, monitors, observes, surveils, threatens, or communicates to or about, a person, or interferes with a person’s property. (ii) Substantial emotional distress means significant mental suffering or anguish that may, but does not necessarily, require medical or other professional treatment of counseling. (iii) Reasonable persons may mean a reasonable person under similar circumstances and with similar identities to the victim. For the purposes of complying with the Clery reporting requirements of this section, any incident meeting this definition is considered a crime for the purposes of Clery Act reporting.

Under New York State Penal Law, a person is guilty of stalking when he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed at a specific person, and knows or reasonably should know that such conduct:

Is likely to cause reasonable fear of material harm to the physical health, safety or property of such person, a member of such person's immediate family or a third party with whom such person is acquainted; or

Causes material harm to the mental or emotional health of such person, where such conduct consists of following, telephoning or initiating communication or contact with such person, a member of such person's immediate family or a third party with whom such person is acquainted, and the actor was previously clearly informed to cease that conduct; or

Is likely to cause such person to reasonably fear that his or her employment, business or career is threatened, where such conduct consists of appearing, telephoning or initiating communication or contact at such person's place of employment or business, and the actor was previously clearly informed to cease that conduct.

Effective October 21, 2014, "following" shall include the unauthorized tracking of such person's movements or location through the use of a global positioning system or other device. There are varying aggravating factors that may raise the level for a charge of Stalking (P.L. 120.45-120.60)

[1] New York Criminal definitions for this and other crimes that may also constitute violation of this policy can be found in the Annual Security Report, found on the Public Safety webpage.

*Definitions fromcollege policy and procedure, in compliance with New York State Bill S5965-2015.